Congress May Pass a Bill Similar to China's Internet Censorship, With Corporations in Charge

On the surface, the so-called "Stop Online Piracy Act" (SOPA) looks like it has a noble end, that of protecting criminal violations of copyright by foreign (non-U.S.) actors. However, on careful inspection, the Act has the potential to spawn a virtual (cyber) witch-hunt and dismantle the free and democratic edifice of the Internet.

Giant ISPs such as Comcast have already begun to block file sharing websites; and Comcast has already gone to court and gotten the legal green light to block or slow web content. Now, as the Federal Communication Commission sits on the sidelines, it is about to receive the authority from Congress to go after content providers if, pursuant to Section 104 of SOPA, it can claim a "reasonable belief" that they are hosting at least some material that is infringing the rights of copyright owners. And it can do so with complete civil and criminal immunity.

In this regard it is useful to inspect the language of Section 104 of SOPA, which states,

No cause of action shall lie in any Federal or State court or administrative agency against, no person may rely in any claim or cause of action against, and no liability for damages to any person shall be granted against, a service provider, payment network provider, Internet advertising service, advertiser, Internet search engine, domain name registry, or domain name registrar for taking any action described in section 102(c)(2), section103(d)(2), or section 103(b) with respect to an Internet site, or otherwise voluntarily blocking access to or ending financial affiliation with an Internet site, in the reasonable belief that-

1) the Internet site is a foreign infringing site or is an Internet site dedicated to theft of U.S. property; and

(2) the action is consistent with the entity's terms of service or other contractual rights [emphasis added].

Pursuant to 102(c) (2)(A), an ISP that receives a copy of a court order from the Attorney General must take "technically feasible and reasonable measures designed to prevent access by its subscribers... to the foreign infringing site (or portions thereof) that is subject to the order." However, pursuant to Section 104 stated above, it appears that no such order must be received by an ISP to commence an action against an alleged offender. Pursuant to the broad language of Section 104 italicized above, it is also entitled to engage in "voluntarily blocking" Internet sites for which it has "reasonable belief" that the site is a foreign infringer and its action is within the purview of its terms of service. The government would accordingly "deputize" Comcast, AT&T and the other ISPs to be its cyber police or law enforcement officers; and it would authorize these companies to make their own determinations in the absence of a court order, and to receive full legal immunity for their actions.

Pursuant to the FISA Amendments Act, these giant telecommunication/mass media companies are already required by government to cooperate with the National Security Agency (NSA) in filtering and copying the email and phone messages of all electronic communications coming through U.S. switches. This system of mass warrantless surveillance was allowed to operate illegally beginning in the early days of the George W. Bush administration until 2007 when the program was "legalized" pursuant to the Protect America Act. Now, these same companies are about to be authorized to block Internet content without a warrant, not just filter and copy it. Pursuant to the FISA Amendments Act, these companies now have immunity from prosecution for unconstitutional, mass, warrantless surveillance of the electronic messages of millions of Americans. These companies are about to be given total criminal and civil immunity for blocking Internet content without a warrant. This means that blocked websites would not have any legal right to redress even if the action taken by the ISP is unlawful.

Upon us is therefore a brave new world of cyber witch-hunting. The witches of Salem were burned at the stake for supernatural crimes they could not defend against. Now those who are targeted by government and/or their telecom cronies may also have no avenue of defense.

SOPA also makes provision for appointment of a head of this cyber witch-hunt, an "Intellectual Property Enforcement Coordinator," who is charged with compiling a list and conduct an analysis of "notorious foreign infringers whose activities cause significant harm to holders of intellectual property rights in the United States." This grand inquisitor will also solicit input from the public and report its findings to Congress (Section 107). Not stated, however, are the implications this organized witch-hunt can have on website operators whose websites link to or contain information somehow associated with these "notorious foreign infringers." So this new "enemies of state list" has the potential to broaden in scope to include any alleged affiliates.

And for those affiliated with the alleged "notorious" gang of foreign offenders, there is no provisions for warning; no obligatory "cease and desist" notification given to an allegedly offending content provider; no chance to rectify the situation by removing the files in question before being shut down. Instead, the ISPs can come in the dead of night and block the entire website on the alleged grounds that just some of its content-even something tangential to the purpose of the website--infringes.

Thus SOPA gives ISPs the power to block web content that is indisputably legal. For example, if someone posts a legally questionable video to a news blog, Comcast can shut down the entire blog, even if this website contains valuable information that is not in any way tied to the video in question or to any other questionable web content. Accordingly, not unlike the witch-hunts, the Act could be used as an excuse to silence content providers whom a particular service provider or government administration, deems contrary to its own financial or political interests. And, not unlike the era of witch-hunts, the climate is now set for "planting" offending materials on websites for nefarious purposes of silencing them.

And when one is, in this way, "set up" or otherwise cheapened by the accusation, the harm perpetrated is indelible and deeply personal. The parallel with witch-branding is edifying. The legacies of those accused of witchcraft were forever sullied. Honor and integrity for having lived a decent life was taken away. This was utter ruination. It wasn't just having been unjustly deprived of life. It was the indignity of it all. The case bears some analogy in the case of those content providers about to be put to cyber death by government and/or its deputized ISP cronies. Pursuant to 102(c)(iv) of SOPA, when a website is blocked, all traffic to the website is redirected to another site that alerts the end user that legal action is being taken against the website. Thus, without any legal recourse, a content provider is effectively branded an "outlaw" or "pirate" and the good name and reputation of the website and its owners are forever and irremediably tarnished in the public eye.

And the plot thickens. Some ISPs are also themselves major Internet content providers such as Time Warner and Comcast. For example, presently, Comcast's TV and movie empire is massive, including NBC Universal domestic Television Distribution and NBC Universal International Television Distribution. Its tentacles thus extend globally and not just within the states. It owns Universal Pictures, Focus Features, and Universal Studios Home Entertainment in addition to a vast web of television stations, digital media, and news and entertainment holdings.

So giving ISPs like Comcast the freedom to go after copyright infringers in cyberspace is not unlike giving an alligator freedom to swim in any public swimming pool or beach. It can quench its competitive appetite wherever and whenever it pleases as long as it can claim "reasonable belief." And no one can legally stop it!

As for government holding Comcast's own feet to the fire, the conflict of interest is glaring. Comcast is supposed to help government close down infringing websites. On the other hand, its own interests militate against closing down itself. This is a blatant case of putting the fox in charge of guarding the henhouse. Only, in this case the fox actually owns a substantial part of the henhouse!

Insult is added to injury when it is also considered that ISPs such as Comcast have powerful congressional lobbies in place. In fact, SOPA was written by House Judiciary Chairman Lamar Smith (R-Texas), who in 2010 received $10,000 in campaign contributions from Comcast. Comcast has a history of rewarding those who support its causes. For example, Al Sharpton was a lobbyist for Comcast helping it to acquire NBC Universal and shortly after he emerged with his own TV talk show on MSNBC. It would therefore not come as a shock to see Smith's campaign funds receive a major boost from Comcast in the not so distant future.

It is well known that the headwaters of intellectual property disputes over infringement are cloudy. Putting a law into effect that forecloses the process of discovery and the adducing of legal arguments on both sides and in its stead substituting having "reasonable belief" that someone is infringing is tantamount to giving carte blanch to government and its giant telecom "deputies" to shut down web sites for self-aggrandizing reasons.

So, if SOPA passes, the U.S. will have little or nothing to distinguish it from China, which also has placed a wall around its Internet and created an army of cyber police. We may be able to claim that we are going after foreign infringers; but the reality of it is that we have opened the door for government and its corporate cronies like Comcast to go on a virtual witch-hunt after any website operator it chooses. When and if this happens we can kiss Internet freedom goodbye.

Elliot D. Cohen is a media ethicist and political analyst. He is the author of Mass Surveillance and State Control: The Total Information Awareness Project (Palgrave Macmillan).